A lie detector can include a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device. These devices are used to render an opinion regarding the honesty or dishonesty of an individual. A “lie detector” does not include tests used to determine the presence of controlled substances or alcohol in bodily fluids.
May an Employer Use a Lie Detector to Determine the Honesty of a Job Applicant?
Under the federal Employee Polygraph Protection Act (EPPA), an employer is prohibited from requiring employees or applicants to take a polygraph test. This covers private sector employers with at least two employees engaged in interstate commerce activities and an annual volume of business of at least $500,000 (commercial businesses). However, it does not apply to public sector employers.
What are the Key Provisions of the EPPA?
There are certain provisions of the EPPA that employers and employees should keep in mind:
- Those involved in intelligence and counterintelligence activities with access to secret information may still be required to take a polygraph
- The prohibition against lie detector tests includes the use of electrical and mechanical devices, but not oral or written tests
- Lie detector tests may be used for matters relating to theft or access to controlled substances
- Drug or alcohol tests are not considered lie detector tests and may be required
How Does the EPPA affect Businesses?
There are a number of ways that the EPPA affects businesses, including:
- Businesses cannot request, suggest, or require a job applicant to take a polygraph examination
- Businesses can request a current employee to take a polygraph or suggest that one be taken, only when specific conditions have been met. However, it cannot require that the employee take the exam
- If a current employee refuses a request or suggestion to take an exam, the employer cannot discipline or discharge the employee based on that refusal
Are there Exceptions to the EPPA?
The EPPA creates an exception for two situations. These include:
- An employer may use a polygraph in connection with an ongoing investigation into theft
- Employers who provide security services (and those engaged in the manufacture of controlled substances) can administer polygraphs to certain applicants
Most states have laws prohibiting or regulating the use of polygraph tests for employment purposes. Some states prohibit all such tests and devices. In addition to the exemptions above, some commercial businesses are exempt if they are:
- Under contract with the Federal Government involving specified activities (such as counterintelligence)
- Businesses whose primary purpose is to provide armored car personnel, personnel involved in the design, or security personnel in facilities which have a significant impact on the health or safety of any state
- Companies which manufacture, distribute, or dispense controlled substances